Secretary of the Interior Ryan Zinke, left, talks with Chairman Kevin Brown and Chief Lynn Malerba of the Mohegan Tribe during the mid-year session of the National Congress of Americans, held on the Mohegan Reservation in Connecticut, on June 13, 2017. On the right is Chairman Bill Iyall of the Cowlitz Tribe. Photo by Indianz.Com (CC BY-NC-SA 4.0)

National | Politics | Trust

Trump team considers 'new' hurdles for off-reservation land applications

Thursday, July 20, 2017

In a major setback for Indian Country, the Trump administration is poised to erect "new" hurdles for tribes seeking to restore their homelands.

A regulation under consideration by the Department of the Interior warns tribes of additional requirements for off-reservation applications. But it goes even further -- the rule would reinstate a 30-day waiting period for all land-into-trust decisions, including those for on-reservation parcels.

"This rule revises existing regulations governing off-reservation trust acquisitions to establish new items that must be included in an application," the notice of proposed rulemaking states. "The rule will also reinstate the 30-day delay for taking land into trust following a decision by the Secretary or Assistant Secretary."

Although the rule is still being developed, the advance notice is the clearest indication that significant changes to the land-into-trust process are on the way. Just last week, a top Interior official told Congress that the Trump team sees problems with off-reservation acquisitions.

"Interior believes the process of trust land acquisition for on-reservation parcels is an important and routine matter that creates economic drivers for tribes," Jim Cason, the Associate Deputy Secretary at Interior, said in testimony to the House Subcommittee on Indian, Insular and Alaska Native Affairs on July 13.

"However, taking off-reservation lands into trust may pose complications for the department, as well as some members of the public, particularly when fee-to-trust applications are for gaming purposes," added Cason, who is a political appointee for President Donald Trump.

Tribal leaders have strongly pushed back, noting that off-reservation acquisitions are exceedingly rare. During the Bush administration -- when Cason held the same post at the department -- almost every application of that type was rejected.

They also point out that gaming developments -- which are also considered economic drivers -- represent a very small percentage of applications submitted to the Bureau of Indian Affairs. Even Cason acknowledged the disparity during last week's hearing.

"In 1491, all 2.3 billion acres of what would become the United States was Indian Country," noted Kirk Francis, the president of the United South and Eastern Tribes and the chief of the Penobscot Nation.

Indianz.Com on SoundCloud: Oversight Hearing "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act"

Congress authorized the land-into-trust process in Section 5 of the Indian Reorganization Act. The 1934 law repudiated the policy of allotment, during which tribes lost ownership of 90 million acres of their reservations.

Since 1934, tribes have reacquired only about 7 million acres through a process they describe as overly burdensome. For on-reservation applications, tribes must complete 16 steps before the BIA gets to a point where a decision can be made. Off-reservation applications require even more scrutiny, including reviews by political officials in D.C.

In hopes of addressing the complaints, former president Barack Obama placed a high priority on restoring tribal homelands. Between January 2009 and January 2017, more than 500,000 acres were acquired through the land-into-trust process. During the same time, another 1.87 million acres were restored through the Land Buy-Back Program for Tribal Nations, which is almost out of money.

“While we can never fully make up for the past, there is no question that the return of land to the tribes was and continues to be critical to restoring the tribal way of life," Rep. Norma Torres (D-California), the top Democrat on the House Subcommittee on Indian, Insular and Alaska Native Affairs, said last week. "Despite what critics claim, this land is used for economic development, for housing, for hospitals and clinics, and for elder care facilities. This is land to ensure the well-being of their people and to pass down to future generations.”

The Obama era represented a dramatic shift from the Bush years, when tribes complained of an unofficial moratorium on land-into-trust applications. Cason confirmed as much at the hearing when he said the Cobell trust fund lawsuit, which had little to do with the land-into-trust process, led Interior to step back from one of its fundamental duties.

"At the time it didn't make a whole lot of sense to say, 'Yes I want to take more land when all of you are suing me on how I didn't care of land I had,'" Cason testified. "So it was a different environment."

But the moratorium wasn't the only way the Bush administration enraged Indian Country -- the BIA also issued a controversial "guidance memo" in January 2008 that made it all but impossible for tribes to acquire land away from existing reservations. The policy was developed without tribal consultation and was used to reject a slew of applications for off-reservation casinos.

The Obama administration rescinded the memo in 2011 and tribes fear the Trump team will revive it. When asked directly about the issue during the mid-year session of the National Congress of American Indians last month, Cason offered what appeared to be a strong denial.

"There hasn't been any deliberating on bringing back that particular doctrine and applying it," Cason said on June 13.

The Obama administration also eliminated a rule that imposed a 30-day waiting period for tribes that won approval of their land-into-trust applications. The delay, which had been imposed during the Clinton era in 1996, was seen as unnecessary in the wake of the U.S. Supreme Court decision in Salazar v. Patchak.

Patchak allows anyone to challenge the BIA's approval of a land-into-trust application at any point. Previously, the federal courts required lawsuits to be filed within a standard six-year statue of limitations but the ruling opened the door for litigation long after a parcel has been placed in trust.

According to the Department of the Interior's regulatory agenda for 2017, the proposed rule for "Off-Reservation Trust Acquisitions and Action on Trust Acquisition Requests" is slated for release in the fall. But there is no requirement for the Trump team to stick to the timeline.

The full abstract of the document follows:

This rule revises existing regulations governing off-reservation trust acquisitions to establish new items that must be included in an application and threshold criteria that must be met for off-reservation acquisitions before National Environmental Policy Act (NEPA) compliance will be required. The rule will also reinstate the 30-day delay for taking land into trust following a decision by the Secretary or Assistant Secretary.

Relevant Documents:
Notice of Proposed Rulemaking: Off-Reservation Trust Acquisitions and Action on Trust Acquisition Requests (Department of the Interior Unified Agenda for 2017)